증거결정의 근거와 이론 ― 논증도식과 합리적 사실인정론 ―

Proving the absolute truth in a criminal case is hard to achieve considering the limitedness and the incompleteness of human intelligence. We are just trying to reach to some point in which we may conclude that the suspect has killed the victim with the probability of 95% or 99%. Beyond that is not our concern even though we sometimes make mistakes in trying criminals. All we have to do for now is to give as much as possible evidence to the fact-finders who are no less capable than us in assessing that. The problem is that we should not offer some of that evidence to the court. Some may be regarded as irrelevant and some inadmissible because it is hearsay or that it is a fruit of a poisonous tree. The result is that we should go to the truth with very limited resources, in other words, with less and less evidence. To make it worse, the Federal Rules of Evidence set forth a rule which gives a great amount of discretionary power to the judge in deciding the admissibility of evidence. The evidence needs to be also neutral and concise to be admitted to the fact-fing process. Thus, it is rather natural to lose a substantial portion of evidence which shows a clear way to the truthful conclusion and which is not legally inadmissible. However, proving the truth is in the territory of a probative science. The admissibility and the relevance of a certain evidence are not scientific terms. To do a scientific research we must begin with drawing an argumentation scheme which shows the possible ways from the evidence to the truth. If we find, for example, a statement evidence in one of those ways, it should be regarded as relevant and admissible even though it seems to be cumulative and unfairly prejudicial. To throw it away is not a good option from the viewpoint of a scientist.